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How Trade Talks Spread America’s Bad Copyright Regime

Earlier this year, a filmmaker was producing a documentary about
something we all can appreciate—the “Happy Birthday” song. To
her great surprise, a music publisher claimed to have the rights to
the song, and informed her that she would have to pay $1,500 to
include the song in the film. This publisher asserted a copyright
claim that runs through the year 2030 (ninety-five years from
registration in 1935). Her surprise was no doubt widely shared by
most other people, who assumed that Happy Birthday was (1) very old
and, therefore, (2) in the public domain. What most people do not
realize, though, is that copyright terms have become quite long.
And through U.S. trade policy, they are getting longer all around
the world.

The Happy Birthday copyright claim may be particularly
egregious, based on the specific facts of the case, but a
ninety-five year term is actually not out of the ordinary. In fact,
it is shorter than some current terms (which vary a bit depending
on particular factors). Life of the author plus seventy years is
now the standard for individual authors. These very long terms are
due to frequent extensions to copyright passed by Congress over the
years, which have pushed copyright terms far beyond their original
length. The longer terms are now being globalized, pursuant to U.S.
demands that its trading partners also extend their copyright
terms.

Intellectual-property
protection is an important policy area and its scope needs to be
examined in a robust, public debate.

Copyright became part of international trade agreements in the
early 1990s, with the WTO and the NAFTA. In subsequent trade
negotiations, the United States has continued to push for even
stronger copyright protections. As part of the Trans Pacific
Partnership (TPP) talks, the United States is pushing its trading
partners to adopt its approach to copyright. As noted, in the
United States, the term for individual authors is life of the
author plus seventy years. In contrast, some of our trading
partners have shorter terms: New Zealand has a term for literary
works equal to the author’s life plus fifty years; Malaysia
has a term of life plus fifty years for “literary, musical or
artistic work”; and Canada has a term of just fifty years for
fixed sound recordings. Pursuant to a TPP draft text, all of these
countries would be required to extend their terms to the longer
U.S. term.

It may seem odd that copyright is an issue for trade talks at
all. In recent years, though, the trade debate has moved beyond
traditional “protectionism” issues such as tariffs or “Buy America”
preferences, and instead focuses heavily on the amorphous concept
of “trade barriers.” A wide range of policies are subject to
accusations that they are a barrier to trade, resulting in calls
for trade agreements to remove the barriers. Intellectual property
in general, and copyright in particular, offer a good example of
this. Many U.S. companies allege that the lack of intellectual
property protection in foreign countries hinders U.S. sales abroad,
and thus acts as a trade barrier.

Unfortunately, as it is being used, the term “trade barrier”
really only tells us that a measure affects trade in some way. It
is true that the U.S. copyright term is longer than the terms of
some of its trading partners, and their shorter terms may reduce
sales of U.S. products abroad. But while copyright terms may affect
trade in this way, the U.S. demands obscure the real question: what
is the appropriate copyright term?

In reality, either a shorter or a longer term can have an impact
on trade, depending on how much intellectual property a country
has. Countries with lots of intellectual property may fear that
weaker protections in their trading partners will reduce their
foreign sales. At the same time, though, those with less
intellectual property can assert that longer terms constitute trade
barriers. Perhaps they could increase their own exports if more
copyrightable materials were in the public domain and available for
republishing and derivative works; and they would have access to
cheaper imports if more materials were out of copyright. Thus, a
simple comparison of term lengths tells us little, and accusations
of “trade barriers” are unhelpful here. Instead, the focus needs to
be on determining the proper term.

Coming up with a “correct” figure for the term of
copyright is challenging. The exercise feels like instinct more
than science. It is worth noting that in the United States, the
copyright term has evolved over time. Terms for individual authors
went from fourteen years (with the possibility of a fourteen-year
renewal) as set by the first Congress, to twenty-eight years (with
a twenty-eight-year renewal) in 1909, to life of the author plus
fifty years in 1976, to life of the author plus seventy years
today. Based on the history of copyright, even the shorter terms
used by our trading partners today seem a bit excessive.

Moreover, the reality is that, when the United States pushes for
these longer terms, it is doing so not to support free trade, but
in order to give its companies an edge. It feels more like economic
nationalism than free trade. In a sense, the long periods in the
U.S. law are a hidden subsidy to U.S. producers.

Intellectual-property protection is an important policy area and
its scope needs to be examined in a robust, public debate. The
earliest time periods for copyright—twenty-eight years total
or fifty-six years total, taking into account renewal—seem
reasonable. Even life of the author may be appropriate. But the
continued extensions are pushing the bounds of rationality.

The appropriate focus of copyright policy right now should not
be on using international trade agreements to extend copyright
terms abroad. Rather, there needs to be a debate that focuses on
how long copyright terms should be. Including provisions on
copyright terms in trade agreements without first having that
debate, and with ever longer terms, is pushing
intellectual-property policy in the wrong direction, and at the
same time undermining the goal of free trade by bringing in
unnecessary controversies.